proposed service for part of its traffic during the summer and probably for all of its traffic during the winter.

In the circumstances in this case, we see no need for limiting the authority sought either to traffic originating at Watertown or to a one-way movement to Granite Falls. In this connection, it may be well to note that there is no showing that the granting of the authority sought would in any way impair the present operations of other carriers. On the contrary, a competing motor carrier and a motor carrier proposing to interchange with applicants at Granite Falls favor the proposed service. In addition, the joint board, which is familiar with local conditions, recommended that the authority be granted.

Applicants operate 16 units of equipment. Their past operations have been successful, and they are fit, financially and otherwise, to conduct the proposed service.

We find that present and future public convenience and necessity require operation by applicants as a common carrier by motor ve hicle of general commodities in interstate or foreign commerce, for the purpose of serving Granite Falls as an additional intermediate point on the routes over which they are now authorized to operate, except that no service shall be rendered by applicants between Granite Falls, on the one hand, and, on the other, those points in Minnesota located on U. S. Highway 212 east of Granite Falls including St. Paul; that applicants are fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; and that they should be granted a certificate authorizing such operations.

Upon compliance by applicants with sections 215 and 217 of the act and with our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application, except to the extent indicated by our findings herein.

23 M. C. C.

No. MC-53732 (SUB-No. 1)

HERMAN F. KUHNHAUSEN EXTENSION OF OPERATIONS GLENWOOD, WASH.

Submitted March 6, 1939. Decided May 11, 1940

Applicant's operation between points in Oregon and Washington found to be such as not to require a certificate of public convenience and necessity. AppliIcation denied.

J. M. Hickson for applicant.

Philip Chipman, Alfred A. Hampson, R. R. Morris, and Stewart Weiss for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5:

No exceptions were filed to the order recommended by the joint board, but it was stayed by us.

By application filed March 2, 1938, Herman F. Kuhnhausen, of Glenwood, Wash., seeks a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, between Glenwood and points within 30 miles thereof, on the one hand, and Portland and The Dalles, Oreg., on the other, over irregular routes. Rail and motor carriers operating in the territory opposed the application. On July 14, 1939, division 5 entered an order in No. MC-53732, dismissing the application filed by applicant under the "grandfather" clauses of the Motor Carrier Act, 1935. He is engaged in the mercantile business, operating a store at Glenwood. In the conduct of this business he sells to farmers such commodities as grain and mill products, building materials, furnishings, lumber, shingles, farm implements, flour, and sugar. He purchases about 95 percent of these commodities in Portland, and occasionally makes purchases at The Dalles and Vancouver, Wash. He transports these commodities, which are his own property, to his place of business at Glenwood. As such transportation is incidental to and in furtherance of his commercial enterprise as a dealer in these commodities, and is not performed for compensation for the transportation as such, his operation is that of a private carrier.

Applicant proposes herein to transport, for hire, livestock, fish, and agricultural commodities from the described points in Wash

ington to Portland in the same vehicle as that in which he transports his own property as a private carrier. The record is not entirely clear whether applicant is operating in intrastate commerce, but he proposes so to operate in Washington, transporting various commodities in vehicles other than those used in hauling in interstate or foreign commerce livestock, fish, and agricultural commodities.

The question here is whether authority is required from us in order for applicant to conduct the above-described operation in view of the provisions of section 203 (b) (6) of the act. The joint board answered this question in the negative.

Section 203 (b) of the act reads as follows:

Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include

(6) motor vehicles used in carrying property consisting of livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation;

It is clear that if applicant engaged only in the transportation of the commodities named in this section of the act, together with that of his private carriage, no authority would be required from us. Monroe Common Carrier Application, 8 M. C. C. 183. However, we here are confronted with the additional factor of applicant's proposed intrastate operation within Washington, of commodities other than those named in this section of the act.

Section 203 (b) (6) refers to "motor vehicles" rather than the transportation performed as a whole. It is our view that, if applicant sets aside a particular vehicle for the transportation of the commodities named in that section and performs no other for-hire transportation with that vehicle, he may conduct the described intrastate operation with other vehicles without affecting the applicability of section 203 (b) (6) of the act. Since the record shows that applicant intends to operate in this manner, no interstate certificate is required. Of course, the exemption created by section 203 (b) (6) would not apply to a vehicle used in transporting, for compensation in either interstate or intrastate commerce, commodities other than those named in the exemption provision.

We find that a certificate of public convenience and necessity is not required for applicant's proposed operation; and that the application should therefore be denied. An appropriate order will be entered.

COMMISSIONER LEE concurs in the result.

No. MC-19188

LEWIS MOTOR TRANSPORTATION LINES, INC., COMMON CARRIER APPLICATION

Submitted September 8, 1939. Decided May 14, 1940

Applicant found to have failed to establish the right to a certificate or permit as a common or contract carrier by motor vehicle, of property, between points in New York, New Jersey, Pennsylvania, and Ohio, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Motor Carrier Act, 1935, in view of an interruption of service within its control as an incident to a bankruptcy proceeding. Application denied.

Stephen E. Jones for applicant.

Pasquale P. Yanella for intervener in behalf of applicant.

Joseph P. Mead, Victor J. Palisano, M. E. Traut, M. C. Smith, Jr., and Samuel P. Delisi for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE

BY DIVISION 5:

Exceptions were filed by applicant to the order recommended by the examiner, and protestants replied.

By application filed February 11, 1936, under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935, as amended, Lewis Motor Transportation Lines, Inc., of Buffalo, N. Y., successor of Esther D. Lewis, doing business as Lewis Transportation Lines, of Olean, N. Y., (No. MC-FC-470) seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities between points in New York, New Jersey, Pennsylvania, and Ohio, over regular routes which need not be described in view of our conclusions herein. Rail lines and motor carriers operating in the affected area opposed the application.

Esther D. Lewis began interstate common-carrier operations in 1933. On and prior to June 1, 1935, she is said to have been maintaining a daily or thrice-weekly schedule between points on the routes sought, which she continued until October 1936 when she sold her vehicles and operating rights, both interstate and intrastate, to the Lewis Motor Transportation Lines, Inc., hereinafter referred to as

Lewis, Inc. The corporation continued the prior operations until June 3 or 4, 1938.

It is unnecessary at this point to consider at length the character and scope of the physical operations on the statutory date and prior to June 1938. Suffice it to say that the record suggests a generalcommodity operation from Cleveland over various regular routes into New York, Pensylvania, and Ohio, the extreme points served being Buffalo, Mount Morris, and Elmira, N. Y., and Ridgway, Emporium, and Canton, Pa.

On June 3 or 4, 1938, the transportation service of Lewis, Inc., was completely discontinued upon receipt by its officials of a subpoena to appear in the United States District Court for the Western District of New York to answer a petition in bankruptcy filed by three creditors. This subpoena applicant's attorney claims to have construed (no doubt erroneously) as in the nature of a show-cause order requiring an immediate cessation of operations to avoid contempt of court. The bankruptcy proceedings were provoked, or hastened, by an attachment obtained by Esther Lewis against some of the corporation's vehicles because of its default in the payment of installments due on the purchased rights. This default arose out of a controversy as to the validity of certain of the operating rights transferred. It is apparent, however, that the filing of the petition in bankruptcy by three creditors was not due solely to the attachment but also to debts owed other creditors. Upon advice of its attorney, Lewis, Inc., requested authority from the court to resume operation under its supervision, but such authority was withheld. On June 17, 1938, the court adjudged the corporation to be bankrupt, and on June 24, 1938, the secretary-treasurer of P. O. N. Y. Express, Inc., purchased the bankrupt's operating rights and immediately transferred them to P. O. N. Y. Express, Inc. An application in No. MC-F-621 for approval of this transfer is now pending before this Commission. P. O. N. Y. Express, Inc., began operations over the routes theretofore operated by Lewis, Inc., on June 25, 1938, but ceased on the following day, upon advice from a representative of our Bureau of Motor Carriers that such operations were unlawful. It later formally sought temporary operating authority over the same routes, under section 210a (a) of the act, which was denied.

P. O. N. Y. Express, Inc., takes the position that to obtain a certificate under the "grandfather" clause of section 206 (a) of the act it is necessary only to prove that its predecessor in interest was in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the routes and within the territory for which application is made and has so operated since that time up to either (a) October 15, 1935, the